Progress of the Law. As Marked by Decisions Selected from the Advance Reports for February

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THE

AMERICAN LAW REGISTER

AND

REVIEW.

MARCH, 1895.

PROGRESS OF THE LAW.

As Marked by Decisions selected from the Advance
Reports for February.

Edited by Ardemus Stewart.

In the opinion of the Court of Civil Appeals of Texas, a
recovery by a husband for injuries to himself is not a bar to

Actions ^ subsequent action for injuries to his wife, sus-

separate tained at the same time, as a result of the same
negligence ; on the ground that, since the owner of property
may recover in separate actions for injuries done to his person
and property at the same time, and as a result of the same
negligent act, (Watson v. Jiy. Co., (Tex.), 27 S. W. Rep. 924,)
a fortiori a similar rule should obtain in the case of a con-
temporaneous injury to a wife; the issue in such a suit is
within the scope of neither the pleadings nor the evidence in
a suit by the husband for the injury to himself: Texas & P.
Ry. Co. V. Nelson, 29 S. W. Rep. 78.

But the recovery of damages for the killing of one horse is,
according to the same court, a bar to the recovery of damages
for another, killed at the same time and place : St. Louis &•
S. W. Ry. Co. V. Moss, 28 S. W. Rep. 1038.

149

150 PROGRESS OF THE LAW.

The Supreme Court of California, in In re Pkilbrook,
38 Pac. Rep. 884, has recently decided that an attorney,
Attorney and '^^°' *" ^^^ \in&{ in the Supreme Court, without

Client, ground, characterizes an associate justice thereof

Scandalous

Brief, as a corrupt person, and threatens that, if the
Suspension gupreme Court decides adversely to his client,
the general public will see that it is corrupt, should be sus-
pended from practice.

The labor unions have at last got a taste of Jersey jus-
tice, the story of which is quite refreshing to read, after the
weak attempt to conciliate those bodies that it
was our misfortune to chronicle last month. Mr.
Barr, the proprietor of a daily newspaper, printed in Newark,.
Essex Co., N. J., decided to use what is known as " plate
matter" in the make-up of his paper, in spite of the sovereign
displeasure of the union of which his employes were at that
time members. Some of these left his employment; others
were manly and honest enough to stay, and forfeited their
membership in consequence. The union then withdrew its
indorsement of the paper, and reported the matter to the
trades council, a representative body, with which this and
other trades unions were affiliated, representing in the aggre-
gate a purchasing power of ;?400,ooo a week. After the
publication by each side of its version of the dispute, the
trades council issued a circular, calling on all its friends to
boycott the paper, and to cease buying and advertising in it.
The Court of Chancery, on these facts, very properly held,
(i) That a boycott started under such circumstances, in pursu-
ance of which not only the members of the various societies,,
by their rules, but the general public as well, by the circular,
were called on to cease buying or advertising therein, and
personal application was made to actual advertisers by the
distribution of printed circulars and resolutions of the
societies, suggesting that they discontinue their advertising
therein, even if they had made contracts to so advertise,
enforced by a threat, in the guise of a suggestion, that if they
did continue to do so, they would also incur the enmity and

PROGRESS OF THE LAW. I5I

opposition of organized labor, followed by actual damage to
the proprietor of the paper from loss in circulation and adver-
tising, is an actionable wrong; and (2) An injunction will
issue to restrain the defendants from doing acts which threaten
a continuing injury and probable ruin of the complainant's
business, the legal remedy for which is inadequate, and would
involve a number of suits ; for (3) Even when there is a legal
remedy, equity will interfere by injunction to prevent («) an
injury which threatens irreparable damage, and {b) a continu-
ing injury, when the legal remedy therefor may involve a
multiplicity of suits ; (4) The criterion of the application of
this jurisdiction is the inadequacy of the legal remedy, as
determined by the following questions : (a) whether the
injury done or threatened is of such a nature that, when
once accomplished, the property cannot be restored to its
original condition, or cannot be replaced by means of com-
pensation in money; and {b) whether full compensation for
the entire wrong can be obtained without resort to a number
of suits. If either of these questions cannot be answered in
the affirmative, an injunction should issue : Barr v. Essex
Trades Council, 30 Atl. Rep. 881.

When a person boards a train to assist a friend thereon,

intending to get off as soon as his friend is seated, but gives

the company no notice of his intention, the com-

Person assist- pany is not liable for injuries received by him in

ing Another alighting after the train starts, when it stopped
on Train o o ' rf

the usual time, and the plaintiff did not request
the employes to stop the train, before attempting to alight :
Texas & P. Ry. Co. v. McGilvary, (Court of Civil Appeals of
Texas,) 29 S. W. Rep. 67.

In general, a person who wishes to assist another on a
train must give notice to the trainmen of his intention to
alight after doing so, or they will not be guilty of negligence
in starting the train before he has time to get off: Coleman v.
Ga. R. R. & Bkg. Co., (Ga.,) 10 S. E. Rep. 498 ; Mo., K. &
T. Ry. Co. V. Miller, (Tex.,) 27 S. W. Rep. 905 ; Yarnell v.

152 PROGRESS OF THE LAW.

Kansas City, Ft. Scott & Memphis R. R. Co., 113 Mo. 575 ;
S. C, 21 S. W. Rep. I. He cannot even ask that the train
be held the usual time of a stop at that station, but only a
reasonable time to allow him to get off: Lawton v. Little Rock
& Ft. Scott Ry. Co., (Ark.,) 18 S. W. Rep. 543. But when a
person has been in the habit of boarding a street car to assist
a child to a seat, and then getting off, and the driver of the
car knew of this habit, the jury may infer that the driver knew
or should have known that this was her intention on the par-
ticular occasion, and it is error to direct a nonsuit : Houston v.
Gate City St. R. R. Co., 89 Ga. 272.

The Court of Civil Appeals of Texas has recently decided

a very interesting point, in United States v. Schwalby, 29

S. W. Rep. 90, to the effect that when trespass to

Taws, ** try title to land, occupied as a fort by the United
Suits against States, is brought in a state court against the com-

United states ° , , ^^ . ,

manding officers- as individuals, and the United
States makes itself a party defendant, the state court has
jurisdiction, as the cause is not a suit against the United
States, nor an attempt to subject the property thereof to suit.

In Moulton v. Dunn, 61 N. W. Rep. 898, the Supreme

Court of Minnesota has ruled, that when plaintiff agreed with

defendant to locate him upon a valuable quarter

'^"public*" section of pine land, which had been long with-

Poiicy, drawn from the market for railroad purposes, and

Lobbying

to do all that was necessary or could be done to
enable defendant to acquire title thereto under the homestead
or preemption laws of the United States ; and, in pursuance
of this agreement, attended several sessions of Congress,
appeared before the Secretary of the Interior and the com-
mittees of the Senate and House of Representatives, and
employed counsel to urge the passage of a bill, declaring
said lands forfeited to the government, and providing that
parties who had settled on the- land in good faith should have
the preference to enter the same under the homestead laws,
when they should be put on the market ; the defendant having

PROGRESS OF THE LAW. I 53

agreed to pay the plaintiff when the right to make final proof
for the land was acquired ; — that such a contract is void, as
against public policy.

A contract for the collection of a claim from the govern-
ment, which provides for compensation contingent on success,
and in which the principal service contemplated and actually
performed is procuring the necessary legislation, is void :
Spalding v. Ewing, 149 Pa. 375. But the employment of an
agent to draft a bill and fairly and openly explain it to a
legislative committee, or to individual members of the legisla-
ture, and ask to have it introduced, is good, if the compensa-
tion is specified in the contract : Chesebrough v. Conover, 140
N. Y. 382; S. C, 35 N. E. Rep. 633. The question seems
to turn largely on the nature of the compensation, and the in-
ducement offered to use illegitimate means to secure success.

According to the Court of Criminal Appeals of Texas,
when, on a trial for burglary, it is shown that the defendant
Criminal Law proposed the Crime to another, who then informed

Decoy the Owner of the premises sought to be burglar-
ized ; that the owner told the informer not to hinder the
defendant, but to let him come of his own free will ; that the
informer agreed with the defendant to commit the burglary,
without intending its accomplishment ; and that there was an
actual entry; — that, on this state of facts, the defendant did not
have the consent of the owner, so as to nullify the criminal
character of the act : Robinson v. State, 29 S. W. Rep. 40.

If a person is employed by another to assist a criminal in
the perpetration of a crime, in order to secure the punishment
of the latter, and the assistant merely aids the criminal to
accomplish his own evil design, the crime is not lessened by
the fact that its commission may have been made easier:
State v. Stickney, (Kans.,) 36 Pac. Rep. jx^-yPeo. v. Curtis, 95
Mich. 212; S. C, 54 N. W. Rep. 767; Pigg v . State , \i
Tex. 108 ; Conner v. State, 24 Tex. App. 245 ; S. C, 6 S. W.
Rep. 138 ; State v. Jansen, 22 Kans. 498. But if the-decoy
suggested the crime, or induced the offender to commit it, or
lent' him aid which would amount to consent if given by the

154 PROGRESS OF THE LAW.

owner of the property affected, his act is the act of his
employer, and the criminal element is lacking : Speiden v.
State, 3 Tex. App. 156 ; Peo. v. McCord, 76 Mich. 200; Peo.
V. Pinkerton, 79 Mich. no. Mere consent to the completed
crime, however, cannot lessen the criminal character of a con-
spiracy to commit it : Johnson v. State, 3 Tex. App. 590.

In State v. Sommers, 61 N. W. Rep. 907, the Supreme

Court of Minnesota has recapitulated some elementary

principles of criminal law, as follows: (i) The

Criminal Law, . . . ^ '

Jury, accused, in a criminal case, is put in jeopardy of
sc arge punishment, in the legal and constitutional sense,
when a jury is impaneled and sworn to try his case upon a
vaUd indictment; (2) That after the jury is thus charged with
the prisoner, he is entitled to have the trial proceed to a
verdict, unless some intervening necessity should prevent ;
(3) That though such a necessity arises when the jury are
unable to agree, yet, in a prosecution for a felony, the defend-
ant has a right to be present at all proceedings, unless he has
waived it ; and therefore, (4) If, in such a case, the jury is
discharged without the consent of the defendant, and during
his enforced absence, (in prison,) he cannot again be tried for
the same offence.

Similarly, though the defendant in a prosecution for a mis-
demeanor may waive a full jury, yet, if that is waived for
him by his counsel in his absence, without his knowledge, and
he does not notice it till the jury is being polled, he is
entitled to a new trial : U. S. v. Shaw, 59 Fed. Rep. 1 10.

The Supreme Court of Indiana, in Hutchins v. State, 39

N. E, Rep. 243, has held, that it is improper for the foreman

Jur °^ a jury, while they are considering their verdict,

Misconduct to make and enforce a rule that no juror can

express an opinion, unless he first arises and addresses the

foreman as chairman, and is recognized by the latter.

The Supreme Court of Georgia, in Atlanta & W. P. R. Co.

V. Smith, 20 S. E. Rep. 763, has laid down the rule, that
Dama es when, in an action for damages for personal
Life Tables injuries, the mortuary table and the annuity table

are both before the jury, any instruction given by the court

PROGRESS OF THE LAW. 155

as to their use in ascertaining present value should not leave
it uncertain as to which table is to be consulted for that
purpose, but should make it clear that the annuity table alone
is applicable ; and when that table contains different columns,
giving present values at different rates of percentage, that fact
should be clearly brought to the notice of the jury.

The Court of Appeals of New York has decided, that when
the name of an office, and of the candidates nominated there-
Elections, for, are omitted from the official ballot of an elec-
Baiiots, ^Jqj^ ^^ which the office omitted is by statute

Omission of ' -'

Candidates required to be voted for, by the negligence of the
officer whose duty it is to prepare the ballots, a voter may
write on the ballot both the name of the office and the name
of the candidate for whom he votes, and the vote will be valid,
under an act which provides that the voter may write the name
of any person for whom he wishes to vote for any office on
the official ballot which he proposes to vote : Peo. v. President,
&c.,of Village of Wappinger's Falls, 39 N. E. Rep. 641;
affirming 31 N. Y. Suppl. 758.

If one is to believe the current trend of decision, the inten-
tion of the voter is the very last thing to be considei'ed in
determining the validity of a vote under the
Australian Ballot system ; although ordinary
men were foolish enough to adopt that system under a belief
that it was especially adapted to effectuate that intention. The
Supreme Court of Michigan is the latest example of this
peculiar obliquity of mental vision, though it must be
acknowledged that it sees straighter in this direction than
most of the other courts. The Ballot Law of that state,
(Laws Mich. 1891, No. 190,) provides that an elector may
mark a stamp or cross in the space below the party name
printed at the head of the ballot ; that if thus marked the
ballot shall be counted for all the candidates of the party
whose names appear in that column ; that if the voter erases
some name in the column, or marks a cross before the name
of a candidate for the same office in some other column, or
writes in a name under the name of any candidate, the name

156 PROGRESS OF THE LAW.

of the candidate thus treated shall not be counted as voted
for, but if the name of the candidate is erased, the vote shall
be counted for the candidate whose name is marked in another
column, or is written in under the name erased; that any
ballot which bears any distinguishing mark or mutilation shall
be void, and shall not be counted ; and that if it is impossible
to determine the elector's choice, from any ballot or part of a
ballot, it shall be void as to the candidates thereby affected.
But the very precaution thus taken to secure the counting of
the vote has proved its own ruin ; for the court evidently pro-
ceeded, in Ellis V. Glaser, 61 N. W. Rep. 648, to interpret it
with reference to the maxim of expressio unius, and held: (i)
That any mark on a ballot, other than the one appropriate
and necessary under the law to designate the intention of the
voter, must be regarded as a distinguishing mark ; and that
therefore, (2) Ballots which have under the heading more than
one cross; (3) A ballot which has a cross in the square under
the heading of one ticket, and two marks like commas in the
square under the heading of another ticket ; (4) A ballot
which has a cross under the heading of one ticket, with a half
circle around it, and a figure written in the square under the
heading of another ticket; (5) A ballot which has a cross
under the heading of one ticket, with a mark under the name
of a certain candidate on such ticket, and a cross opposite the
name of the opposing candidate on another ticket ; (6) A
ballot which has a blot in the centre of the ticket, and no
cross upon it; (7) A ballot which has a straight line under the
heading of one ticket, and no cross upon it; and (8) A ballot
which has a cross under the heading of one ticket outside the
square, and the square inclosed in a large circle ; should not
be counted. This decision is beyond doubt correct as to (3),
(4), (6) and (8) ; in (3), (4) and (8), on the ground of a distin-
guishing mark, and in (6), on the ground of uncertainty, the
ballot not being marked at all. But in (2) and (7) the intent
is clear, and the mark hardly of sufficient prominence to be
called distinguishing, and in (5), the ordinary presumption
would be that the voter intended to erase the name marked.
With surprising liberality, however, the court admitted as

PROGRESS OF THE LAW. 15/

valid, (i) A ballot with a cross in the square under the
heading of one ticket, the name of one candidate erased, and
only the surname of the candidate on the opposing ticket
written in ; (2) A ballot with a cross in the square under the
head of one ticket, the name of one of the candidates partially-
erased, and the name of another person written in with a lead
pencil; and (3) A ballot with a cross in the square at the
head of one ticket, the name of one candidate thereon erased,
and the name of his opposing candidate written in. It also
very properly held, that when the attorney general, in a letter
of instruction to election officers and electors, stated that when
ballots were used on which two tickets appeared, with a
candidate for a place on each ticket, and a cross was placed in
an appropriate place on each ticket, the ballot should be
counted for such candidate, and that the fact that the voter
indicates in more than one way his desire to vote for any
candidate on the ballot is no reason why he should be deprived
of his vote, or the candidate deprived of its credit ; and has
also given the opinion that a certain ballot, on which the voter
placed a cross opposite the names of the individual candidates
on one ticket, and erased the names of the candidates on
opposing tickets, was a good vote for the candidates opposite
whose names the cross was placed : — that, in view of this con-
struction of the act by the executive department, ballots of the
class referred to, cast in an election two years later, could not
be declared illegal, and should be counted For a brief resume
of the decisions on the question of marking ballots, see i Am.
L. Reg. & Rev. (N. S.) 748 ; 2 Am. L. Reg. & Rev. (N. S.) 83.
The Supreme Court of Pennsylvania, in McCowin's Appeal,
30 Atl. Rep. 955, has held, that under an act providing that
at the right of the list of candidates for an office

stickers *=>

there shall be left as many blank places as there
are candidates to be voted for for that office, and that the
voter may insert, in the blank space prepared therefor, any
name not already on the ballot, ballots marked by pasting a
blanket slip over the right hand column of the ballot, on
which is printed the title of the office to be filled, and the name
of the candidates voted for, and the printed directions thereon

158 PROGRESS OF THE LAW.

as to the manner of marking the ballot, are illegal, and cannot
be counted; but names may be inserted by single sticker,
or by stamp, or in any other appropriate way.

The selection of the president of the city council by that

body is an election, within a statute prohibiting the offer of a

bribe to influence one's vote at an election : Com-

Bribery

monwealth v. Root, (Court of Appeals of Kentucky,)
29 S. W. Rep. 351 ; but the offer of money to a councilman
to induce him to cast his vote for a certain person to fill an
office which does not exist, is not bribery, according to the
same court : Commonwealth v. Reese, 29 S. W. Rep. 352.

It is a question of fact for the jury, whether a company

operating an electric railroad is negligent in not maintaining a

guard wire over its trolley wire, so as to prevent

Electric Rail- ^ . .

roads, a fallen telephone wire from resting on its trolley
Guard Wires ^jj.g^ ^j^^j becoming charged with the trolley cur-
rent, to the injury of one driving along the street : Block v.
Milwaukee St. Ry. Co., (Supreme Court of Wisconsin,) 61
N. W. Rep. iioi.

The Supreme Court of Tennessee, in Cumberland Telegraph
& Telephone Co. v. United Electric Ry. Co., 29 S. W. Rep. 104,
Damages to holds, that when a telephone company, already in
Telephone operation, is injured by the effects of the more
powerful electric current used by a trolley company operating
on the street on which the wires of the telephone company
are placed, through the trolley current invading the telephone
exchange and the houses of subscribers, the trolley company
is liable for the damage done to the business of the telephone
company ; and none the less so, because the latter did not
obviate the effects of conduction, by making the necessary
changes in its plant. Being first on the ground, it was not
bound to do so.

This commends itself to the justice, as well as the judgment
of mankind, far better than the contrary position taken by
the Ohio courts in Cincinnati Inclined Plane Ry. Co. v. City &
Suburban Telegraph Assn., 48 Ohio St. 390; S. C, 27 N. E.
Rep. 890 ; or the refusal of the Supreme Court of New York to

PROGRESS OF THE LAW. 159

•enjoin the erection of an electric road : Hudson River Tel.
Co. V. Watervliet Turnpike Co., 32 N. E. Rep. 148; which was
followed in Natl. Tel. Co. v. Baker, [1893] 2 Ch. 186.

In the opinion of the Supreme Judicial Court of Massa-
chusetts, a pamphlet issued in great numbers by an associa-
Evidence '•''^"> Stating that a certain fund is held in trust by
Pamphlets the association for certain purposes, is admissible
against the chief officer of the association, to prove that he
knew that the fund was a trust fund : Putnam v. Gunning,
39 N. E. Rep. 347.

Communications by a client to his attorney of an intent to
Privileged commit an illegal act, such as an intent to violate
"""""'"" the insolvent law by permitting certain creditors
Illegal Intent to obtain preferences, are not entitled to protec-
tion as confidential : Taylor v. Evans, (Court of Civil Appeals
of Texas,) 29 S. W. Rep. 172.

Communications to an attorney, concerning a proposed in-
fraction of the law, are not privileged : Hickman v. Green,
(Mo.,) 22 S. W. Rep. 455 ; nor will communications be pro-
tected, which are made while seeking to obtain professional
advice in an attempt to cheat or defraud creditors ; and an
attorney who advised about and drew up a fraudulent bill of
sale can be compelled to testify as to what was said to him
by his client: Hamil v. England, 50 Mo. App. 338.

The Supreme Court of Tennessee is of opinion : (i) That

upon the cross-examination of a locomotive engineer, who

testifies as an expert on the question of running

Evidence, ...

Works of trains, it is allowable to use a standard authority
on the subject in shaping the questions put to
him, and to require him to examine the book, and read from
it, with a view of testing his knowledge on the subject ; and
(2) That if counsel is permitted, without objection from the
other side, to read to the jury extracts from a standard
authority on a subject involved in the suit, as evidence of the
facts therein stated, it is not a reversible error : Byers v.
Nashville, C. & St. L. Ry. Co., 29 S. W. Rep. 128.

Though the general question is still involved in some

l6o PROGRESS OF THE LAW.

doubt, scientific works are admissible in evidence, under the
statutes of several states ; but even then they must be shown
to have a direct bearing on the case ; and, in an action against
a railroad company for killing a person on the track, an ex-
tract from a work known as the American Mechanical Dic-
tionary, treating of appliances for stopping trains and the dis-
tances required therefor, which did not give the size of the
train, the pressure applied to the brakes, nor the character of
the grade, was held not admissible : Burg v. Chic, R. I. & P.
Ry. Co., (Iowa,) 57 N. W. Rep. 680.

The Court of Civil Appeals of Texas, in Laing v. State,

28 S. W. Rep. 1040, holds, that when an adult, who employed

Intoxicating a minor, sends him to a saloon to buy beer for

Sale to"Mi'nor '^'"^' ^""^ '^^ minor SO informs the saloon keeper,

for Adult the sale is to the employer, not to the minor.

When a minor bears a written order for liquor from an
adult, the sale is made to the adult, not to the minor ; but if
the order is verbal only, or if the principal be not disclosed, the
sale is to the minor : State v. McLain, 49 Mo. App. 398 ; and
this is so, even when the minor has been in the habit of bringing
bona fide orders, and delivering the liquor ; if he but once
drinks it himself, the sale is to him : Dixon v. State, 89 Ga.
785 ; S. C, 15 S. E. Rep. 684. It has even been held, in
Texas, that a sale on a verbal order was to the minor, though
he actually delivered the liquor to his principal : Yakelv. State,.
30 Tex. App. 391 ; S. C, 17 S. W. Rep. 943. This ruling
is hardly worth discussing. It is conclusively refuted by
Hurt, J., in his dissenting opinion: 20 S. W. Rep. 205 ; and
would seem to be overruled by the case above. The Arkansas
courts have held, very properly, that if the minor is known to^
be doing the errand of another, the sale is not to the minor :
Wallace v. State, 16 S. W. Rep. 571.

The Supreme Court of Nebraska has recently decided, that

a written accusation against a clergyman, preferred by the

Libel, deacons in the church, according to the usages of

Clergyman the church, charging him " with repeatedly and

persistently uttering statements that are contrary to the truth,"

PROGRESS OF THE LAW. l6l

and going on to state, that " we charge him with giving way
to violent and unchristian temper. We charge him with
defaming the good name of members of the church;" is libel-
ous per se; but a plea that the accusation was preferred
according to the usage and discipline of the church, is a good
plea of qualified privilege: Piper v. Workman, 6i N. W. Rep.
588.

The act of the trustees of a school in collecting evidence

in respect to the conduct of the principal, and sending it to

Libel ^^^ board of education, which alone had power to

Teacher remove her, is privileged, as being within the line
of their public duty ; and sending a copy of such charges to
the principal, in order that she might answer the charges
against her, is not a publication : Galligan v. Kelly, (Supreme
Court of New York,) 31 N. Y. Suppl. 561.

These are but extensions of the rule that makes accusa-
tions in the course of judicial proceedings privileged, if made
to the proper tribunal, though otherwise libelous: Pedley
v. Morris, 61 L. J. Q. B. 21 ; Tilley v. Roney, 61 L. J.
Q. B. 727. All charges made before a proper church
tribunal are privileged, whether made as the founda-
tion for action, or during the course of the proceedings :
Shtirtleff V. Stevens, 51 Vt. 501; Etchison v. Pergerson,
%% Ga. 620; S. C, 15 S. E. Rep. 680. But slanderous words,
spoken to a former pastor of the church, are not privileged :
Carpenter v. Willey, (Vt.,) 26 Atl. Rep. 488.

The Supreme Court of Pennsylvania has lately held, that

several distinct conversations in regard to a debt barred by

the statute of Hmitations cannot be considered

Limitations , . , . , „ .

together, m order to determme the sufficiency of
promises made in them to remove the bar : Patterson v. Neuer,
30 Atl. Rep. 748.

According to the Circuit' Court for the Eastern District of

Pennsylvania, a scheme for issuing bonds to investors, upon

monthly instalments, and payable out of the

redemption and reserve fund, of such a nature that,

with no special advantage, an investor could not get back even

1 62 PROGRESS OF THE LAW.

all that he put in, but offering a chance, by the anticipated
redemption of some of the bonds, to obtain an exorbitant
premium at the expense of other investors, is a gambling
scheme, pure and simple; and that a bondholder, if he has
paid money into the treasury of the corporation issuing the
bonds, is entitled to have a receiver of its assets appointed, to
prevent frauds and preserve the subject of litigation, pending
the determination of the rights of all the bondholders :
McLaughlin v. Natl. Mut. Bond & Investment Co., 64 Fed.
Rep. 908.

The Court of Appeals of England has recently decided, in

Alabaster v. Harness, [1895] i Q. B. 339, that (i) In order to

justify maintenance by one person of the suit of

Maintenance

another, there must either be a common mterest
recognized by the law in a matter at issue in the suit, or the
case must fall within one of the specific exceptions from the
law against maintenance established by the authorities ; (2)
That when the defendant, being interested in the sale of certain
electrical appliances for the treatment of disease, employed one
T. as an expert to report thereon, who reported favorably ;
the plaintiffs, proprietors of a newspaper, subsequently pub-
lished an article commenting adversely on T.'s report, and the
appliances in question, and casting reflections on T.'s qualifi-
cations as an expert, and on his conduct and that of the defen-
dant in connection with the report and the sale of those
appHances, whereupon T. brought an action for libel against
the plaintiffs, at the instigation of the defendant, who furnished
the money for the purposes of the action ; and the action
resulting in a verdict and judgment for the defendant therein,
the present plaintiffs, they then sued the defendant for main-
tenance, claiming as damages the costs incurred in defending
the action for libel, which T. was unable to pay; — that the
action could be maintained, on the ground that the defendant
had no common intere.st with T. in the action for libel, and
therefore was not entitled to maintain him in bringing and
prosecuting that action.

The Supreme Court of Iowa has lately held, in Eighmy v.

PROGRESS OF THE LAW. 163

Union Pac. Ry. Co., 6i N. W. Rep. 1056, that a railway corn-
Master and pany, which voluntarily furnishes a hospital for the
Servant, treatment of its employes in case of injury, is not

Negligence of '■ / -^ '

Physician liable for the malpractice of the surgeons employed,
if they are competent.

Whether required by statute, or assuming the duty, the
master who employs a phy^cian to attend his employes, the
carrier who employs one to attend its passengers, or the
hospital or other institution that employs one to attend its
inmates, is only bound to procure one who is competent, and
when that duty has been performed, he is free from all hability
for the physician's negligence : Union Pac. Ry. Co. v. Artist,
60 Fed. Rep. 365 ; So. Fla. R. R. Co. v. Price, 32 Fla. 46 ;
S. C, 13 So. Rep. 638; O'Brien v. Cunard S. S. Co., Ltd.,
(Mass.,) 28 N. E. Rep. 266; McDonald v. Mass. Gen. Hospital,
120 Mass. 432 ; Laubheiser v. De Koninglyke Nederlandsche
Stoomboot Maatschappy, 107 N. Y. 228 ; S. C, 13 N. E. Rep.
781 ; Allen v. State S. S. Co., (N. Y.,) 30 N. E. Rep. 482,
reversing 8 N. Y. Suppl. 803. But if the physician is incom-
petent, or unfit to perform his duties, the employer is liable ;
though, if he has used ordinary care, he is not responsible,
even when the hospital is supported by the forced contribu-
tions of the employes : Richardson v. Carbon Hill Coal Co.,
(Wash.,) 39 Pac. Rep. 95.

The Supreme Court of Minnesota, in Emery v. Hertig, 61

N. W. Rep. 830, has decided, that a person employed by a

Meciianics' Contractor to polish granite columns designed for

unioiown ^"^^ Vi?,^^ in the construction of a building for a

Owner bank, is entitled to a mechanic's lien therefor,

although, when he performed the work, he did not know for

what particular building the columns were intended. It was

enough, if it was understood, (as the court held it must have

been from the nature of the columns,) that they were intended

for building purposes, and not for the general market.

The Supreme Court of the United States has just decided,

164 PROGRESS OF THE LAW.

in Bate Refrigerating Co. v. Scharschild & Sulzberger, (not
Patents, y^^ reported,) one of the most important questions
Expiration of patent law that has been raised since the Bell
Telephone cases. The question in dispute arose under § 4887
of the Revised Statutes of the United States, which provides
as follows : " No person shall be debarred from receiving a
patent for his invention or discovery, nor shall any patent be
declared invalid, by reason of its having heen first patented or
caused to be patented in a foreign country, unless the same has
been introduced into public use in the United States more than
two years prior to the application. But every patent granted
for an invention which has been previously patented in a foreign
country shall be so limited as to expire at the same time with
the foreign patent, or, if there be more than one at the same
time, with the one having the shortest term, and in no case
shall it be in force more than seventeen years."

The plaintiff contended that an invention patented or
caused to be patented in a foreign country before being
patented in the United States, should not be deemed to have
been "previously patented in a foreign country," within the
meaning of the section of the Revised Statutes quoted above,
unless the foreign patent was granted prior to the application
for the American patent ; while the defendants claimed that
the dates of the American and foreign patents, and not the
date of the American application, determined the question
whether an invention, patented in the United States, had been
"previously patented in a foreign country." The question was
therefore squarely presented, whether the foreign patenting of
an invention subsequently patented in the United States, must
antedate the patenting or the application here, in order to fall
within the terms of the statute.

The court, in a very able and exhaustive opinion by Mr.
Justice Harlan, accepted the contention of the defendants, and
held, that the words "prior to the apphcation" could not be
superadded in the section of the Revised Statutes in question,
either after the words "first patented or caused to be patented
in a foreign country," or after the words "previously patented
in a foreign country," without defeating the intention of Con-

PROGRESS OF THE LAW. 165

gress, as manifested by the language it selected to indicate its
purpose; that the express command of the statute was, that
every American patent for an invention " previously patented in
a foreign country," that is, "first patented or caused to be
patented in a foreign country," shall expire at the same time
with the foreign patent; and that therefore, when an article is
patented in a foreign country before the American patent for
it is issued, the latter expires with the former, though the
application therefor was made prior to the granting of the
foreign patent.

Incidentally, the court decided several collateral matters of
much importance: (i) That to curtail the full term of a
patent, by reason of the issuance of a foreign patent for the
same article subsequent to the application therefor in the
United States, is no breach of the promise of the United
States, made at the date of the application, to give the
inventor a patent for the full term of seventeen years, if, upon
examination, it should be found that he was entitled to one at
the date of the application ; for the curtailment of the term
for the reason mentioned is an express condition of the grant ;
(2) That it is the duty of the Supreme Court to follow, as far
as is consistent with reason and justice, prior decisions of the
lower courts on the same question as that before it, and rulings
of the officers of the executive branch of the government in
reference to the same subject matter ; and (3) That the obser-
vations of a member of a committee of a legislative body,
made when reporting a bill from committee, are not to be taken
as an indication of the construction of the bill by that body,
especially when the bill receives various amendments during
its passage, making material alterations from the document
reported by the committee ; nor can it be assumed, in any
case, that a legislative body bases its action upon the opinions
of individual members of that body as to the scope and legal
effect of a statute.

The effect of this decision will be to put a stop at last to a
practice of which inventors have too often been guilty, and
which is briefly referred to in the opinion in this case, — that of
purposely delaying action by the Patent Office upon applica-

1 66 PROGRESS OF THE LAW.

tions for patents, until they could reap the full benefit of the
monopoly they had obtained in foreign countries before taking
out an American patent. This practice is very tersely
summarized in the report of the Commissioner of Patents for
1887, quoted by Mr. Justice Harlan: "In the meantime, they
are engaged in manufacturing and putting upon the market
the article or improvement, but warning the public that the
patent is applied for, the effect of which is to give them the
absolute control and monopoly of the invention, and to deter
all other inventors from entering upon the same field of inven-
tion, and from manufacturing the article." The very existence
of such a practice should have inclined the court, even if the
statute were ambiguous, to adopt a construction which would
put an end to it.

The rule that makes the proceedings of ecclesiastical

tribunals conclusive as to matters within their jurisdiction,

does not apply when civil rights are involved ; and

Religious ff J b >

Societies, in such cascs the courts are not bound by them.

es n ca jhus, according to a recent decision of the
Supreme Court of Nebraska, when the deacons of a church
have made a written accusation against a clergyman, preferred
in the church, which is otherwise libelous />er se, the find-
ing and judgment made by the church in the trial of the
clergyman on the charges is not competent evidence for either
party in ,a suit for damages for the libel, and is properly
stricken out of the answer of the deacons: Piper v. Woolntan,.
61 N. W. Rep. 588.

The Supreme Court of California has recently decided,

Beatty, C. J., and De Haven, J., dissenting, that if there is

any variance between an act of Congress, as

statutes, -^ . . & '

Enrolled and found in the printed volume of statutes, and the
Printed Copies Q^jgjjj^j^ ^g enrolled and deposited with the

Secretary of State, the latter will prevail : McLaughlin v.
Menotti, 38 Pac. Rep. 973. This is especially true, when, as
in this case, the enrolled bill gives a much better meaning to.
the act.

PROGRESS OF THE LAW. 1 67

The Supreme Court of Washington has lately held, that under
a statute making it unlawful " to open on Sunday for the pur-
SundayLaws, P°^^ °^ trade or Sale of goods, wares and mer-

Barbers chandise, any shop, store or building, or place of
business whatever," a barber cannot be convicted for opening
his shop and plying his trade on Sunday ; the act applies only
to stores, shops, &c., used for the purpose of trade in or sale
of goods, and not to places where, as in the case of a ' barber
shop, a mere trade or profession is exercised, but no goods
are traded or sold : State v. Kreck, 38 Pac. Rep. lOOl. Sup-
pose the barber sells a bottle of hair restorer on Sunday,
what then ? His trade is " work," however, within the
meaning of that word in the "Sunday" laws: State v. Wel-
lott, 54 Mo. App. 310; and is not a "work of necessity:"
Comnt. V. Waldman, 140 Pa. 89; S. C, 21 Atl. Rep. 248,
affirming 8 Pa. C. C. 449 ; Comm. v. Jacobus, i Camp. (Pa.)
491 ; Ohiov. Schuley, 23 Wkly. Law Bull. 450; though that
has been held a question for the jury: Ungerkht v. State,
il9lnd. 379; S. C, 21 N. E. Rep. 1082. See 15 Cent.
L. J. 145-

The Court of Civil Appeals of Texas is of opinion, that
when it is the custom of the employes of a telegraph company,
Telegraph known and allowed by the company, to receive for
'Tei'e''"hone' transmission messages by telephone, the company
Messages is bound to Send a message so received, and
agreed by its employes to be sent : Texas Telegraph & Tele-
phone Co. V. Seiders, 29 S. W. Rep. 258.

A manufacturer is entitled to call his goods by a name
which is merely a substantially correct description of them
although, by reason of another manufacturer
having for many years sold similar goods under
the same name, purchasers may be thereby misled into the
belief that they are buying the goods of that other manu-
facturer : Reddaway v. Banham, (Court of Appeal,) [1895] i
Q. B. 286.

The Supreme Court of Tennessee has ruled, that when a

1 68 PROGRESS OF THE LAW.

testator, after giving his nephew all his land, and the proceeds
^ in case it was sold, and providing for the payment

Construction, of his debts, gave him all the money arising from
fope y j.j^g g^jg ^f j^jg stock, of every kind, and all his
" loose property," which he directs to be sold, these latter
words are not to be restricted to property ejusdem generis with
the stock mentioned in the preceding clause, but include all of
the testator's personalty, including money on deposit and
choses in action : Fry v. Shipley, 29 S. W. Rep. 6.